Office of Immigration Litigation's Work Does Not Threaten Judicial Independence

DOJ component represents DHS on appeals, and more

EOIR immigration judges and BIA members issue removal decisions, which are then defended in circuit courts by Office of Immigration Litigation (OIL) attorneys when appealed by aliens.

OIL attorneys also represent the government in a number of other federal matters relating to immigration, including denaturalization, which they have prosecuted for years.

None of OIL's representation in these matters call into question the independence of EOIR, or the AG's ability to act as a neutral arbiter in removal cases in which DHS seeks review on certification.

DOJ's creation of a new Denaturalization Section in OIL is not proof of the Trump administration's "willingness to break norms to achieve its goals"; in reality, that office has prosecuted such cases for years.

In a recent post, I discussed the errors in a Washington Post article captioned "On immigration, Attorney General Barr is his own Supreme Court. Judges and lawyers say that's a problem." The Post alluded indirectly therein to a little-known component of the Department of Justice (DOJ) — the Office of Immigration Litigation (OIL), in DOJ's Civil Division. Understanding what OIL does — and doesn't do — is critical to many ongoing immigration debates, including ones raised in the Post.

OIL was established in 1983 to litigate civil immigration matters for DOJ. Its website concisely describes that office's work:

The Office of Immigration Litigation oversees all civil immigration litigation, both affirmative and defensive, and it is responsible for coordinating national immigration matters before the federal district courts and circuit courts of appeals. It provides support and counsel to all federal agencies involved in alien admission, regulation, and removal under U.S. immigration and nationality statutes. Office of Immigration Litigation attorneys work closely with United States Attorneys' Offices on immigration cases. The Office of Immigration Litigation is divided into three functional sections — an Appellate Section, a District Court Section, and a Denaturalization Section.

More on that last clause below. By way of background, however, for decades, Congress worked to consolidate all reviews of removal orders in the courts of appeals (the federal appellate courts), as the Conference Report for the REAL ID Act of 2005 discusses in some detail, culminating in section 242 of the Immigration and Nationality Act (INA) as it currently reads.

OIL's Appellate Section represents the government in cases filed by alien petitioners who are appealing removal orders issued by the immigration courts and the BIA (both of which are in DOJ's Executive Office for Immigration Review (EOIR)). The fact that, as a DOJ component, OIL provides that representation has been used in the past by proponents of an Article I immigration court to argue that EOIR and its judges are not actually "independent". That misses a major point, however.

OIL does not affirmatively file appeals of BIA decisions — it only defends them when the alien respondents file petitions for review with the circuit courts under section 242 of the INA. There is a reason why there are no circuit-court immigration decisions captioned "DHS (or Wolf) v. DOJ (or Barr)": the government cannot appeal an adverse EOIR decision to an Article III court.

To reiterate: Only the alien can seek circuit-court review of an adverse administrative decision in a removal case. The sole remedies that DHS has to reverse an erroneous BIA opinion are to request en banc review of that decision (by a majority of the permanent BIA members, which is expressly disfavored by regulation), or seek review of it on certification by the AG under 8 C.F.R. § 1003.1(h)(1)(iii). And the only remedy that DHS has from a wrongly decided en banc decision is to seek AG certification.

Nonetheless, the AG's exercise of that important authority was the main focus of criticism in the March 5 Post article (hence the headline).

Although Congress has attempted to consolidate immigration cases in the courts of appeal, as noted above, certain immigration matters nonetheless are argued in U.S. District Court. OIL's District Court Section, which was established in 2008, represents the government in those cases, and on circuit court review therefrom.

As its website explains:

Most of the District Court Section's litigation responsibilities are defensive in nature. Immigration litigation defense consists of a wide range of individual and class action cases, including petitions for writs of habeas corpus, Administrative Procedure Act challenges to denials of immigration benefits, actions for declaratory or injunctive relief, mandamus actions, and constitutional claims.

So, for example, when asylum seekers challenged Ken Cuccinelli's appointment as acting director of U.S. Citizenship and Immigration Services in the D.C. District Court in L.M.-M. v. Cuccinelli (a case that I discussed in a March 3 post), an OIL attorney assisted with the government's defense. In Al Otro Lado v. Wolf, a case in which aliens who claimed they had been subject to "metering" at ports of entry sought a temporary restraining order from a district-court judge in California to prevent the government from applying the third-country asylum agreement rule (which I discussed in a November 21, 2019, post) to them, OIL represented the government as well.

More mundanely, OIL attorneys represent the government in habeas proceedings filed in district court by aliens in removal proceedings or awaiting removal who are seeking release from U.S. Immigration and Customs Enforcement detention, in cases like E.O.H.C. v. Att'y Gen. and Evariste v. Barr.

Such a matter was, apparently, referenced in the March 5 Washington Post article, relating to a Honduran national named Kevin Euceda ("experts ... cited recent moves by Justice Department, such as ... using an immigrant's confidential therapy notes in a deportation case against them [sic], as evidence of the Trump administration's willingness to break norms to achieve its goals").

I say "apparently" because the Post was not clear about DOJ's involvement in the matter, aside from reference to a DOJ "filing arguing that Kevin's continued detention is not a violation of his constitutional rights" in a separate Post piece from February that was linked in that article.

The "experts" referenced in the March 5 Post article also pointed to DOJ's creation of "an office to denaturalize immigrants" — the new Denaturalization Section within OIL referred to above, which DOJ announced on February 26 — "as [further] evidence of the Trump administration's willingness to break norms to achieve its goals."

Revocation of naturalization is provided for in section 340 of the INA, and is hardly a novel concept. The press release announcing the new OIL section, which references that provision, states:

Denaturalization cases require the government to show that a defendant's naturalization was "illegally procured" or "procured by concealment of a material fact or by willful misrepresentation." [Section 340 of the INA.] Civil denaturalization cases have no statute of limitations, and the Department has successfully denaturalized numerous categories of individuals who have illegally obtained citizenship, including terrorists and other national security threats, war criminals, human rights violators, sex offenders, and other fraudsters.

The Post's "experts" notwithstanding, note the reference to DOJ's "successful[] denaturailz[ation]" of "numerous categories of individuals who have illegally obtained citizenship" in the past in that press release.

Those denaturalizations were previously prosecuted by OIL's District Court Section, which still claims jurisdiction over such cases on its website (last updated on August 14, 2017, and in need of a refresher). That press release states that OIL "already has achieved great success in the denaturalization cases it has brought, winning 95 percent of the time," while explaining that "the growing number of referrals anticipated from law enforcement agencies motivated the creation of a standalone section dedicated to this important work."

Really, all that the "Trump administration" is doing is reassigning responsibility over denaturalization from an old OIL section to a new one. Hardly proof of norm-breaking to achieve implicitly shady "goals", as the Post suggests.

Denaturalization by a DOJ component (OIL) in such cases would be a predicate for removal proceedings before an immigration judge in EOIR, which is, as noted, a separate DOJ component. The naturalized citizen would have to be denaturalized before he or she could be placed into section 240 proceedings.

That, however, is hardly proof of overreach or conflict by DOJ or its head, the AG (again, the focus of the March 5 Post article). In fact, similar involvement by yet another DOJ office in a different predicate proceeding (criminal prosecution) is likewise unremarkably required before an alien can be charged with removability based on a conviction for a federal crime.

An attorney in a U.S. attorney's office (also a component within DOJ) would obtain such a conviction from a federal judge before DHS would (as appropriate) seek that alien's removal based on that crime. Thereafter, an immigration judge in EOIR would assess whether the crime renders the alien removable, and whether the criminal alien is eligible for relief.

And yet, it would be ridiculous to argue that an immigration judge — the AG's delegate — would not be a "neutral arbiter" because an alien's removal was premised on a federal prosecution obtained by a U.S. attorney. The same is true even if the AG himself were to review the ultimate decision on certification.

In summary, EOIR immigration judges and BIA members issue removal decisions, which are then defended in circuit courts by OIL attorneys when appealed by aliens. OIL attorneys also represent the government in a number of other federal matters relating to immigration, including denaturalization (which they have prosecuted for years). None of OIL's representation in these matters calls into question the independence of EOIR, or the AG's ability to act as a neutral arbiter in removal cases in which DHS seeks review on certification. Nor is any of this proof of the Trump administration's "willingness to break norms to achieve its goals."

The Center for Immigration Studies is an independent, non-partisan, non-profit research organization founded in 1985. It is the nation's only think tank devoted exclusively to research and policy analysis of the economic, social, demographic, fiscal, and other impacts of immigration on the United States.